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Farrington & Belkis (Recusal Application) (No 2)

Farrington & Belkis (Recusal Application) (No 2)

Case [2023] FedCFamC2F 1343 19 October 2023

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FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343

File number(s): CAC 924 of 2021

Judgment of: JUDGE W J NEVILLE

Date of judgment: 19 October 2023

Catchwords: FAMILY LAW – Parenting – recusal application – contentions by the Father that various interim Orders constituted alleged “findings” and which were said to be adverse to him, was patently incorrect and showed significant misunderstanding by the Father of both the Court’s processes and the nature of and distinction between interim and final Orders – the Father’s recusal Application was brought so late in the final hearing, which remains part-heard, that according to authority, it amounted to waiver because the Father waited so long to raise any concerns about either matters of procedure and matters of evidence, both when he was legally represented and when he was self-represented – even after bringing his recusal Application, and it being heard, the Father filed a further Application in which he sought that the trial Judge (against whom the recusal Application was filed) hear that Application – the Father is ex-defence forces but has erroneously sought to apply to the Court (and the lawyers who appear before it) certain rules and procedures from the Australian Defence Force, including that, somehow, the Court is responsible for any and all communication between lawyers, outside Court, that impacts or may do so, the litigation, which again highlights the Father’s failure to appreciate the role of lawyers and their duties to the Court, including and especially the duty of lawyers appearing in the role of Independent Children’s Lawyer – recusal Application refused – costs of all other parties, including the ICL and the Director-General, reserved..

Legislation: Family Law Act 1975 (Cth)

Cases cited:
Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51

British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283

Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337

Johnson v Johnson (2000) 201 CLR 488

Re JRL; Ex parte CJL (1986) 161 CLR 342

Michael Wilson & Partners v Nicholls (2011) 244 CLR 427

Smits v Roach (2006) 227 CLR 423

Vakauta v Kelly (1989) 167 CLR 568

Division: Division 2 Family Law

Number of paragraphs: 74

Date of hearing: 16 August 2023

Place: Canberra

Applicant Self-represented

Counsel for the Respondent Mr J Haddock

Solicitor for the Respondent Bevan & Co

Independent Children’s Lawyer Robinson + McGuinness Family Law

ORDERS

CAC 924 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:
MR FARRINGTON
Applicant

AND:
MS BELKIS
Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

19 OCTOBER 2023

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:
1.The Applicant Father’s Application in a Proceeding filed 16^th August 2023 be dismissed.
2.The costs of the Applicant Mother, the Director-General and the Independent Children’s Lawyer of and incidental to the Applicant Father’s Application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Farrington & Belkis (Recusal Application) (No 2)

Details

AGLC: Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343
Case: [2023] FedCFamC2F 1343
Decision Date: 19 October 2023

CaseChat Overview and Summary

In the Federal Circuit and Family Court of Australia, the case of Farrington & Belkis (Recusal Application) (No 2) involved a dispute between Mr Farrington and Ms Belkis concerning parenting arrangements. The matter was part of a protracted family law dispute. The key issue before the court was whether the trial judge should be recused due to alleged bias, as argued by the applicant, Mr Farrington. Mr Farrington contended that various interim orders made by the court constituted adverse findings against him and that he misunderstood the distinction between interim and final orders. He further argued that the court should not have allowed certain communications between lawyers outside of court.

Judge W J Neville dismissed the application for recusal. The judge found that Mr Farrington's application was made too late in the proceedings, which were still part-heard, amounting to a waiver of his right to challenge the judge's impartiality. Additionally, the judge noted that Mr Farrington had an erroneous understanding of the court's processes and the role of lawyers, particularly the Independent Children's Lawyer. The judge highlighted that Mr Farrington had attempted to apply rules from the Australian Defence Force to the court, further demonstrating a misunderstanding of the court's procedures. As a result, the recusal application was dismissed, and the costs of the application were reserved for determination at a later date.

Orders

Orders of the court

CAC 924 of 2021

FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)

BETWEEN:

MR FARRINGTON

Applicant

AND:

MS BELKIS

Respondent

ORDER MADE BY:

JUDGE W J NEVILLE

DATE OF ORDER:

19 OCTOBER 2023

UNTIL FURTHER ORDER, THE COURT ORDERS THAT:

1. The Applicant Father’s Application in a Proceeding filed 16th August 2023 be dismissed.

2. The costs of the Applicant Mother, the Director-General and the Independent Children’s Lawyer of and incidental to the Applicant Father’s Application in a Proceeding filed 16th August 2023 be reserved.

3. The matter be listed for re-opened Final Hearing on 14 November 2023 at 10:00am in CITY V, in relation to those issues post-dating 28 April 2023.

Note: The form of the order is subject to the entry in the Court’s records.

Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).

Section 121 of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343

Most Recent Citation

Farrington & Belkis (No 3) [2024] FedCFamC2F 660

Cases citing this decision · 2 of 2 shown

Farrington & Belkis
[2024] FedCFamC1A 133 Para 6

…ify the primary judge from further participation in the litigation, but the application was dismissed on 19 October 2023 ( Farrington & Belkis (No.2) [2023] FedCFamC2F 1343). The applicant did appeal that decision, but voluntarily discontinued the appeal about two weeks afterwards.…
Farrington & Belkis (No 3)
[2024] FedCFamC2F 660 Para 10

…nths. [22] The “recusal judgment”, dismissing the Father’s recusal Application was Farrington & Belkis (Recusal Application) (No 2) [2023] FedCFamC2F 1343.…

View all 2 citing cases →

Cases cited in this decision · 29 of 29 shown

Newett & Newett (No 6)
[2022] FedCFamC1A 70 Para 16

…ewett (No. 6) [2022] FedCFamC1A 70 this case provides a summary of what constitutes actual bias and emphasizes that such a finding requires cogent evidence and should not be made lightly. 94.In response to Opposing Counsel's use of this case, I argue that I have provided sufficient evidence of actual bias on the part o…
Charisteas v Charisteas
[2021] HCA 29 Para 16

…Citation : (2021) 273 CLR 289, the High Court reiterated the principles of apprehended bias, stating that a judge is not expected to remain passive or 'sphinx-like' during proceedings. They are permitted to express tentative or preliminary views without this being seen as prejudgment. 97.This case is relevant becaus…
Huda & Huda and Laham
[2018] FamCAFC 85 Para 16

…Laham Citation: [2018] FamCAFC 85, in this case, while no apprehended bias was found by the Full Court of the Family Court, procedural unfairness was determined based on the Trial Judge’s interventions, including their number, length and circumstances. This case is relevant as it demonstrates that even if bias isn't…
Anae v R
[2018] NSWCCA 73 Para 16

…v R Citation : [2018] NSWCCA 73, in this case, the court found that there was indeed apprehended bias on the part of the trial Judge. This conclusion was reached by applying a four-step process which involved considering if a fair-minded lay observer might reasonably apprehend that the Judge might not bring an imp…
Galea v Galea
[2015] NSWCCA 215 Para 9

…v Johnson (2000) 201 CLR 488, Galea v Galea (1990) 19 NSWLR 263 at 278-279 and Garrett & Freeman (No 3) [2007] NSWLEC 139 to the effect that the focus of the test is whether a fair-minded lay observer might reasonably apprehend that a Judge might not bring an impartial mind to the resolution of questions the Judge is r…
Isbester v Knox City Council
[2015] HCA 20 Para 16

…the Judge, then there may be grounds for recusal. My complaints should be viewed from this perspective. 13.In Isbester v Knox City Council (2015) 255 CLR the High Court held that while Judges are entitled to form preliminary views, it becomes problematic when there is a reasonable apprehension that they have pre-judged a matter befor…
Reid v Commercial Club (Albury) Ltd
[2014] NSWCA 98 Para 9

…not of itself sufficient to lead to a finding of actual bias. 12.Similarly, the decision of Reid v Commercial Club (Albury) Ltd (2014) NSWCA 98. the NSW Court of Appeal, of whom Justice Emmett was a member, conveniently summarised from paragraphs 68 to 69, the relevant principles as follows: A finding of actual bright bias is a grave matter…
McMillan and McMillan (No.1)
[2013] FCCA 1399 Para 16

…6) 224 ALR 51, the court maintained that judicial officers have the authority to warn parties of the likely outcome if they pursue a certain course of action. This includes expressing robust terms to parties and their lawyers about submissions or actions that are deemed hopeless, a waste of time, or destined to fail…
Michael Wilson & Partners Ltd v Nicholls
[2011] HCA 48 Para 20

…mmary of principle, and for comparative purposes, its complex factual and procedural circumstances. [19] Michael Wilson & Partners Limited v Nicholls (2011) 244 CLR 427.…
British American Tobacco Australia Services Ltd v Laurie
[2011] HCA 2 Para 7

…224 ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 at [1] begins with Mason J’s important admonition in Re JRL . His Honour dissented, as did Gummow J, in the result.…
SS & AH
[2010] FamCAFC 13 Para 9

…3; and b.In each instance, the father’s complaints are a self-justifying and concerning repeat of what he has already asserted unsuccessfully. Whilst doubtless, the father believes his case is straightforward, the independent fair-minded observer is not burdened by the father’s wrongheaded convictions but would take…
Hartnett & Sampson
[2008] FamCA 75 Para 16

…Hartnett & Sampson [2008] FamCA 75 the Court held that the test for apprehended bias is whether a "fair-minded observer" would conclude that the Judge had formed opinions which might affect his or her determination of outstanding matters. 70.In this case I argue that the presiding Judge has demonstrated bias in f…
Garrett v Freeman (No 3)
[2007] NSWLEC 139 Para 16

…3) [2007] NSWLEC 139 reiterated principles around Judicial conduct and expressions of preliminary views during proceedings. Similar to Galea v Galea , this case provides further support for my argument surrounding Judicial conduct and potential bias. I can use it to highlight instances where I believe the Judge's e…
Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd
[2006] HCA 55 Para 16

…arties are permitted to make full submissions does not manifest partiality or bias . [16] Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577. His Honour, Gummow A-CJ, concurred, at [4].…
Australian Broadcasting Corporation v O'Neill
[2006] HCA 46 Para 16

…These very long Rejoinder submissions were as follows (emphasis in original): 1.In the case, Australian Broadcasting Corporation v O’Neill [2006] HCA 46, the High Court of Australia held that test for apprehended bias was “whether a fair-minded lay observer might reasonably apprehend that the Judge might not bri…
Smits v Roach
[2006] HCA 36 Para 15

…irby J’s comments, at [53] in Johnson to which I have referred concerning “the bystander”, were considered further in Smits v Roach (2006) 227 CLR 423 at [95] – [97]. Concerning Kirby J’s reference in Johnson to the “fictitious bystander”, I note that the plurality in Johnson , at [13], referred to “the fictional obs…
Antoun v The Queen
[2006] HCA 2 Para 7

…A convenient starting point for the consideration of principle are comments by Kirby J in Antoun v The Queen .[12] [12] Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51. Re JRL; Ex parte CJL (1986) 161 CLR 342 at p.352. French CJ’s judgment in British American Tobacco Australia Services Limited v Laurie (2011…
VFAB v Minister for Immigration & Multicultural & Indigenous Affairs
[2003] FCA 872 Para 16

…n : (2003) 131 FCR 102, in this case, the Court held that occasional displays of impatience and irritation by a Judge will not amount to a disqualifying bias. Momentary outbursts and misunderstandings in the often-stressful work of adjudication must be tolerated, so long as they pass and do not affect the functions o…
Minister for Immigration And Multicultural Affairs v Jia Legeng
[2001] HCA 17 Para 16

…ster for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 178 ALR 421: Gleeson CJ and Gummow J observed that "the question is not whether a decision-maker’s mind is blank; it is whether it is open to persuasion". This observation was made in the context of considering w…
Ebner v Official Trustee in Bankruptcy
[2000] HCA 63 Para 1

…in ‘sphinx-like’, it is equally essential that they do not form conclusions prematurely without considering all facts and arguments ( Ebner v Official Trustee in Bankruptc y (2000) 205 CLR 337). The fear here is not about the Judge's engagement, but about possible premature conclusions drawn which could potentially lead to bias. d.In this conte…
Johnson v Johnson
[2000] HCA 48 Para 1

…about possible premature conclusions drawn which could potentially lead to bias. d.In this context, Johnson v Johnson [2000] HCA 48; 201 CLR 488; 174 ALR 655; 74 ALJR 1380, might be a relevant case where Gleeson CJ at [11] stated "bias is an attitude of mind which prevents an impartial adjudication upon issue…
Rogers v The Queen
[1994] HCA 42 Para 16

…d.Concerning a 'prejudicial narrative', this refers to my contention that certain assumptions or conclusions appear to have been made by the Court without proper evidentiary basis. While courts must indeed make determinations based on evidence presented, where there appears to be a predetermination or prejudgme…
Webb v the Queen
[1994] HCA 30 Para 16

…g an impartial mind to bear upon the resolution of the case, then there may be grounds for recusal. 4.Moreover, in Webb v The Queen (1994) 181 CLR 41 The High Court held that if circumstances exist which give rise to justifiable doubts about a Judge's impartiality, then they should disqualify themselves from hearing…
Vakauta v Kelly
[1989] HCA 44 Para 8

…n, so the judge should, to a proper extent, express any tentative views. [13] See too the earlier comments of the High Court in Vakauta v Kelly (1989) 167 CLR 568 at p.571, where Brennan, Deane & Gaudron JJ said: “[A] trial judge who made necessary rulings but otherwise sat completely silent throughout a non-jury tri…
Re JRL; Ex parte CJL
[1986] HCA 39 Para 16

…342. This case provides the basis for the apprehension of bias test in Australian law. The High Court held that a Judge should not sit to hear a case if a fair-minded observer might reasonably apprehend that the Judge might not bring an impartial mind to the resolution of the question the Judge is required to decide…
Livesey v New South Wales Bar Association
[1983] HCA 17 Para 16

…pprehended bias meet either of these standards as accounted. The above case along with Livesey & Anor v New South Wales Bar Association (1983) 151 CLR 288 is relevant as it establishes the test for apprehended bias in Australian law . Applying this to my situation, my complaints about the Judge's conduct and request…
R v Watson; Ex parte Armstrong
[1976] HCA 39 Para 16

…ites R v Watson (1976) 136 CLR 248 the High Court of Australia held that a Judge should not preside over a case if there is any reasonable suspicion from the parties or the public that he/she may not be impartial or unbiased. In such circumstances, prohibition will apply. This is crucial to maintaining public confide…
Briginshaw v Briginshaw
[1938] HCA 34 Para 16

…High Court of Australia held that in civil litigation, the standard of proof is a balance of probabilities. However, this does not mean that all matters are to be proved on a simple balance of probabilities. The gravity of the allegations made, the inherent unlikelihood of an occurrence of a given description…
McCall & Clark
[2009] FAMCAFC 92 Para 16

…ingful relationship with both parents and the need to protect them from physical or psychological harm. McCall & Clarke [2009] FamCAFC 92 further reinforced that the best interest of the child is paramount when making parenting orders. 9.In response to your query regarding the complaint about extending trial time, i…

Legislation cited in this decision · 1

Family Law Act 1975 (Cth)
1 mention (from Para 8)

File number(s):	CAC 924 of 2021
Judgment of:	JUDGE W J NEVILLE
Date of judgment:	19 October 2023
Catchwords:	FAMILY LAW – Parenting – recusal application – contentions by the Father that various interim Orders constituted alleged “findings” and which were said to be adverse to him, was patently incorrect and showed significant misunderstanding by the Father of both the Court’s processes and the nature of and distinction between interim and final Orders – the Father’s recusal Application was brought so late in the final hearing, which remains part-heard, that according to authority, it amounted to waiver because the Father waited so long to raise any concerns about either matters of procedure and matters of evidence, both when he was legally represented and when he was self-represented – even after bringing his recusal Application, and it being heard, the Father filed a further Application in which he sought that the trial Judge (against whom the recusal Application was filed) hear that Application – the Father is ex-defence forces but has erroneously sought to apply to the Court (and the lawyers who appear before it) certain rules and procedures from the Australian Defence Force, including that, somehow, the Court is responsible for any and all communication between lawyers, outside Court, that impacts or may do so, the litigation, which again highlights the Father’s failure to appreciate the role of lawyers and their duties to the Court, including and especially the duty of lawyers appearing in the role of Independent Children’s Lawyer – recusal Application refused – costs of all other parties, including the ICL and the Director-General, reserved..
Legislation:	Family Law Act 1975 (Cth)
Cases cited:	Antoun v The Queen (2006) ALJR 497; (2006) 224 ALR 51 British American Tobacco Australia Services Limited v Laurie (2011) 242 CLR 283 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 Johnson v Johnson (2000) 201 CLR 488 Re JRL; Ex parte CJL (1986) 161 CLR 342 Michael Wilson & Partners v Nicholls (2011) 244 CLR 427 Smits v Roach (2006) 227 CLR 423 Vakauta v Kelly (1989) 167 CLR 568
Division:	Division 2 Family Law
Number of paragraphs:	74
Date of hearing:	16 August 2023
Place:	Canberra
Applicant	Self-represented
Counsel for the Respondent	Mr J Haddock
Solicitor for the Respondent	Bevan & Co
Independent Children’s Lawyer	Robinson + McGuinness Family Law

CAC 924 of 2021
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN:	MR FARRINGTON Applicant
AND:	MS BELKIS Respondent

ORDER MADE BY:	JUDGE W J NEVILLE
DATE OF ORDER:	19 OCTOBER 2023